Don Fox Planning Pty Limited v City of Sydney Council

[2014] NSWLEC 1047

Land and Environment Court

New South Wales

Medium Neutral Citation:	Don Fox Planning Pty Limited v City of Sydney Council [2014] NSWLEC 1047
Hearing dates:	7 and 13 January 2014
Decision date:	13 January 2014
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	See (9)
Catchwords:	Modification application
Legislation Cited:	Environment Planning and Assessment Act 1979
Cases Cited:	Affordable Housing NSW Pty Ltd v Sydney City Council [2012] NSWLEC 1314
Category:	Principal judgment
Parties:	Don Fox Planning Pty Limited (Applicant) City of Sydney Council (Respondent)
Representation:	Mr M Staunton, barrister (Applicant) Dr S Berveling, barrister (Respondent) HWL Ebsworth Lawyers (Applicant) City of Sydney Council
File Number(s):	10753 of 2013

Judgment

1. SENIOR COMMISSIONER: On 6 November 2012, Morris C upheld an appeal by Affordable Housing NSW Pty Ltd concerning an application made to Sydney City Council for a boarding house located on Parramatta Road at Camperdown. The application and its approval was founded primarily on matters set out in paras 17 and following of that decision, a decision which is Affordable Housing NSW Pty Ltd v Sydney City Council [2012] NSWLEC 1314, where the Commissioner recorded that a joint planning report by planners for the council and the applicant in those proceedings addressed all of the contentions in the case and concluded that the development, as proposed in the Issue F plans, was appropriate for the site.

1. With regard to building height, those experts agreed that the proposal was acceptable because the sixth level was to be located towards the Parramatta Road frontage where a similar six storey building is already located to the east of the site. The experts noted that the sixth level is to be set back generally from the building edges, that it would not create any adverse amenity impacts upon surrounding residents in terms of overshadowing or overlooking, and that it allowed for increased footpath area and street width resulting in better public amenity.

1. Those experts also agreed that the minor variation to the floor space ratio, compared to that proposed under the then Draft Local Environmental Plan was acceptable and that the amended building bulk and massing of the development was then consistent with the character of the area. There was then, subsequently, some evidence concerning façade treatment, architectural treatment and the like.

1. These proceedings arise from a further application concerning this site seeking to add two additional units to the sixth level. One of them, to be a caretaker's unit, is to be located behind the elements on the sixth level that had already been approved and is to be set back somewhat from the frontage to the adjacent street to the west. There were no matters raised by the council with respect to that element of that which is proposed.

1. The matter that was contentious, at the commencement of the proceedings before me, was the proposed new unit sought to be added on the sixth level in the south-western corner of the building. The result of the joint conferencing was that Mr Short, the council's planner, considered that the design, as it originally came before me, was unacceptable for a variety of reasons - primarily relating to its presentation from the south when viewed across Parramatta Road and the possibility of portions of it being viewed from the street to the west.

1. During the course of the evidence in court, the possibility of setting the western wall of that contentious element back a further distance and removing, as was proposed by this application generally, that architectural feature close to the corner that had been referred to colloquially as "the pagoda", resulted in Mr Short agreeing that, consistent with the matters that were discussed in the joint expert report in the earlier proceedings to which I have referred, there were now no matters that remained in contention.

1. I note that the redesign to reflect that change has included internal modifications to that additional unit proposed for the south-western corner so that it has been able to be retained as an adaptable unit and that it was not necessary to convert the caretaker's apartment into being one which was adapted.

1. The only objection that was raised to the application, as it was originally notified in the surrounding area, was by a person who lived to the rear of the property who was of the view that, "The building was going to block our view." It may well be that the building, as presently approved, would block the view of that resident. I am, however, satisfied that that which is now proposed to be added at the sixth level, which is set back somewhat to the east of the existing approved elements on the sixth level, will not have any adverse impact on that person's outlook from their residence.

1. The consequence of that is that the amended plans (for which leave was granted to be relied upon, subject to them being prepared) having now been provided to me, together with agreed conditions of consent, means that when I have received the conditions of consent electronically, I will make orders in chambers to give effect to this decision. Those orders will be that:

(1)   Leave is given to rely on amended plans. I note, for the purposes of this decision, that the council concedes that the amendments are minor, a view in which I concur, there being no necessity, as a result, for any order pursuant to s 97B of the Environment Planning and Assessment Act 1979.

(2)   The appeal will be upheld.

(3)   Development consent will be granted subject to the conditions that will be forwarded to me.

1. When those orders are made, the appropriate exhibits will be noted as being returned to the parties.

Tim Moore

Senior Commissioner